RIGHT-TO-KNOW LAW REQUESTS FOR SCHOOL EMPLOYEE ADDRESSES
Pennsylvania State Education Association ex rel. Wilson v. Commonwealth, PA. Cmwlth., No. 396 M.D. 2009, decided Feb. 17, 2015
In a decision issued February 17, 2015, the Commonwealth Court decided a Right-to- Know Law (RTKL) case involving access to public employee home addresses. The Court enjoined the Office of Open Records (the OOR) and school districts from disclosing the home addresses of public school employees, until employees receive written notice and a have a meaningful opportunity to object to such disclosure under the exceptions to the RTKL. The Court observed the “personal security” exception under RTKL § 708(b)(1)(ii) might apply, which requires a showing that producing the addresses is “reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual.” In addition, the Court directed the OOR to allow employees to intervene in an appeal from denial of a RTKL request for their home addresses, or to appeal as aggrieved parties if a school district provides their home addresses in response to a RTKL request.
This case has a torturous procedural history from when it was initially filed in 2009 to the present. Suffice to say, pending this decision, an injunction has been in place since 2009 preventing the release of public employee home addresses.
The issue was framed by the Commonwealth Court as “… whether the RTKL deprives an individual, whose personal information may be exempt from disclosure, … of procedural due process by not providing a mechanism to ensure that an affected individual has notice that his or her personal data has been requested and an opportunity to demonstrate that his or her personal security may be at risk if the information is disclosed.” As noted in the Court’s opinion, the Pennsylvania Supreme Court held in another decision that the RTKL as implemented by the OOR does not provide public school employees with a reliable method to seek redress for actions they believe violate the statutory scheme and/or their constitutional rights.
The Commonwealth Court noted that although the purpose of the RTKL is to ensure government transparency, the General Assembly did not provide for carte blanche access to all public records in possession of a government agency.
The Court found troubling that the RTKL does not require notice be given to an individual the personal security exemption is designed to protect, and does not allow such individual any opportunity to object to disclosure on the basis of the personal security exemption, any opportunity to appeal to the OOR, or any opportunity to intervene in an appeal to the OOR by a requester. The Court found that these factors constituted a lack of procedural due process.
In a footnote, the Court pointed out that its holding only provides for an employee to have notice and an opportunity to assert the personal security exemption if an RTKL request seeks that employee’s home address.
Once the employee receives notice, it is the employee’s responsibility to provide evidence that his or her personal security will be at risk if the agency discloses the home address. The Court was also careful to note that its decision was not based on a constitutional right to privacy, but rather on a right to procedural due process.
Compliance by School Districts. The gist of the Commonwealth Court’s decision is that school district employees now have an opportunity to object to a RTKL request seeking their home addresses. When such a request is made, the school district must notify all affected employees of such a request, and advise that the employees have an opportunity to demonstrate that disclosure should be denied pursuant to the personal security exemption. In addition, the OOR cannot order access to such information without permitting the individual employee to intervene in a requester’s appeal from the denial of a request. Further, the OOR must allow an individual to appeal as an aggrieved party from a grant by the school district of a RTKL request for his or her home address.
When an RTKL request is made for employee home addresses, the district should take the following steps:
1. Because compliance with the Commonwealth Court’s directives will take more than 5 days, the Opens Record Officer should take a 30-day extension to respond to the request, on the basis that the nature of the request precludes a response within the required time period. RTKL § 902(a)(7).
2. The Open Records Officer should promptly notify all affected employees in writing of the RTKL request, and that an employee may object by explaining in writing why providing his or her home address is reasonably likely to result in a substantial and demonstrable risk to the employee’s personal security. We suggest giving employees 10 days to provide such written objection. We believe that amount of time should fulfill the Commonwealth Court’s directive to provide a “meaningful opportunity” for employees to object to disclosure of home addresses.
3. If an objection is received, the Open Records Officer should make a good-faith determination on whether the objection qualifies under the personal security exemption of RTKL § 708(b)(1)(ii). You may wish to confer with legal counsel on that determination.
4. The Open Records Officer should send a copy of his or her decision to any objecting employees.
5. If the Open Records Officer grants the request for home addresses over the objection of an employee, the information should not be produced until the 15 business day period for the objecting employee to appeal to the OOR has expired.
6. If the request is denied because of an employee’s objection and the requester appeals to the OOR, the Open Records Officer should notify the objecting employee, so that he or she has the opportunity to intervene in the appeal. The school district can decide whether to participate actively in a requester’s appeal to the OOR, or instead simply permit the objecting employee to participate as the true “interested party.”
That is all for now. However, please note that an appeal of the Commonwealth Court’s decision to the Supreme Court is considered likely. Stay tuned, and please let us know of any questions or concerns.
========================================================
We hope you find this issue of KKAL’s Education Law Watch helpful and informative. Please understand that the Law Watch is designed to provide information about current developments and required actions. It does not constitute legal advice, and school districts should consult a lawyer knowledgeable in this area of the law prior to taking specific actions on the issues addressed.
If you have any questions regarding any education law matter, including the issues discussed in this newsletter, please do not hesitate to contact us at (717) 392-1100, or email us at the following addresses.
KEGEL KELIN ALMY & LORD LLP
Education Law Group
(717) 392-1100
Clarence C. Kegel, Jr. kegel@kkallaw.com
Howard L. Kelin kelin@kkallaw.com
Jeffrey D. Litts litts@kkallaw.com
Rhonda F. Lord lord@kkallaw.com
Jason T. Confair confair@kkallaw.com
Stephen S. Russell russell@kkallaw.com
Kay Mercein Mann mann@kkallaw.com
Christine Nentwig nentwig@kkallaw.com
========================================================